After New York: The (Near) Future of Gay Marriage

Author: Alex Altman
Publication: Time Magazine, Swampland
Publication Date: July 5th, 2011

Click here to read more at swampland.time.com 

The New York state legislature’s passage of the Marriage Equality Act was the third landmark victory in six months for the gay-rights movement, following the repeal of “Don’t Ask, Don’t Tell” in December and the Obama Administration’s decision to stop defending the Defense of Marriage Act (DOMA). And while the “Don’t Ask, Don’t Tell” and DOMA breakthroughs were federal successes, the Empire State’s legalization of gay marriage was perhaps the most significant in the trifecta of achievements.

New York is the sixth state to permit same-sex marriage, joining Connecticut, Iowa, Massachusetts, New Hampshire and Vermont, plus Washington, D.C. With more than 19 million residents, New York is also by far the largest, and it more than doubles the gay number of Americans with equal marriage rights, from 16 million to more than 35 million. The state’s size, and its stature as an bellwether for progressive causes, makes a particularly potent statement about the gay-rights movement’s momentum. “New York is such a powerful stage,” says Evan Wolfson, the founder and president of the national gay-rights advocacy group Freedom to Marry. “It’s a powerful opportunity that is going to ripple through the country and the world.”

Even before New York Governor Andrew Cuomo signed the bill just before midnight on June 24, the tide was already turning. The legislatures of Delaware, Hawaii and Illinois recently passed bills legalizing civil unions for gay couples, a meaningful step toward granting full marriage rights. (Rhode Island also passed a similar measure, though some gay-rights activists say its language governing religious exemptions is fatally flawed, and have urged the governor not to sign it.) Any of those states could follow the lead of states like Connecticut and Vermont, which passed civil-union bills before turning to full marriage equality. Rahm Emanuel, the mayor of Chicago and President Obama’s former chief of staff, came out in favor of same-sex marriage on June 29. Buoyed by the victory in Albany, gay-rights advocates are surveying the states with hope, convinced that New York could catalyze a chain reaction around the country.

The next battleground will likely be a familiar one: California, which passed* where a court upheld same-sex marriage legislation in 2008 but saw it overturned by the ballot initiative known as Proposition 8 just months later. A case that challenges the constitutionality of Prop 8, Perry v. Schwarzenegger, currently sits in the 9th Circuit Court of Appeals and could be heard this fall. “I think that we will have a ruling from the federal court of appeals by the end of the year,” says Richard Socarides, president of the gay-rights organization Equality Matters, who predicts that “whether procedural or substantive, residents of California by the end of year will have right to marry reinstated.”

Another likely battleground is Maryland, where the state senate passed gay-marriage legislation this session. It stalled in the House — observers say the whipping effort fell a few votes short — but Democratic Gov. Martin O’Malley, who like Cuomo is thought to harbor national ambitions, said he would have signed the bill, and could opt to champion the issue in a similar fashion to burnish his credibility with the progressive base that plays a crucial role in presidential primaries. “We’ve gone from being a political third rail, in many people’s perceptions, to being a kingmaker cause, as Governor Cuomo’s rising prospects show,” says Wolfson.

Then there are a pair of states in which gay marriage has been dealt setbacks, but where advocates plan to mount campaigns to get gay-marriage referendums on the 2012 ballot: Oregon, where a constitutional amendment to ban gay marriage passed in 2004; and Maine, where a 2009 bill codifying marriage rights was signed by the governor in 2009 but subsequently overturned in a ballot initiative. After crunching the numbers, Nate Silver found that ballot initiatives stand a good chance in both states.

Across the Hudson, gay-marriage supporters filed a lawsuit last week in New Jersey seeking a court order to bar discrimination against same sex couples. They could also pursue the issue in the legislative branch, where New Jersey’s senate president, Stephen Sweeney, says he regrets his decision to withhold support for a gay-marriage bill. But marriage-equality supporters are thought to lack the votes to override a likely veto from Governor Chris Christie, who said he is “not a fan” of same-sex marriage.

Gay-marriage opponents have also used New York as a rallying cry, vowing to marshal support in defense of traditional marriage. In part, that effort may take the form of an intimidation campaign against Republicans edging toward support of gay rights. After four Republicans in the New York Senate joined 29 of 30 Democrats to provide the margin of victory in the 33-29 vote, National Organization for Marriage President Brian Brown blistered them for “selling out” their principles and vowed to spend $2 million to oust them from office. “The Republican party has torn up its contract with the voters who trusted them in order to facilitate Andrew Cuomo’s bid to be President of the U.S.,” Brown, who could not be reached for an interview, said in a statement. “Gay marriage has consequences for the next generation, for parents, and for religious people, institutions and small business owners. Politicians who campaign one way on marriage, and then vote the other, need to understand: betraying and misleading voters has consequences, too. We are not giving up, we will continue to fight to protect marriage in New York, as we are actively doing in New Hampshire and Iowa.”

It will be an increasingly difficult battle. Several recent polls show that a slight majority of Americans support marriage equality. Gay-rights activists are hoping for a critical endorsement from Obama, whose fuzzy stance toward gay marriage has perplexed activists otherwise heartened by the steps his Administration has taken toward ending same-sex discrimination. Obama, who supports civil unions and maintains that his position on gay marriage is “evolving,” says the latter issue should be left to the states. In the case of New York’s Marriage Equality Act, he called it  ”a good thing.” But he has been typically circumspect, keeping the polarizing topic at arm’s length. Pointing to the polls, Wolfson says the President has little reason for reticence. “The President has very little to lose but a lot to gain politically. The center of political gravity in this country has shifted, and the President is lagging behind,” Wolfson says. “He needs to be with us.”

*Clarification: California passed same-sex marriage legislation in 2005 and 2007, but Governor Arnold Schwarzenegger vetoed both bills. In 2008, a state Supreme Court ruling upheld gay couples’ right to marry.